In Colorado divorce cases a party may win an award of attorney’s fees in two different situations. One situation occurs when a disparity of earning capacity exists among the parties in the case. The second situation is based on the improper conduct of a party within the context of a pending domestic relations case.

In Colorado, the district courts have the authority to grant an order of attorney’s fees to one party in a domestic relations case under Colorado Revised Statutes § 14-10-119. The basic purpose behind this statute is to equalize the financial status of the parties involved in divorce, custody and child support cases. Specifically, a Court may order one party to pay for the other’s reasonable attorney’s fees if the court finds that a wide disparity exists in the earning capacity of the parties. Such an award can include costs related to all aspects of the case, including discovery and litigation expenses. Once a Court awards attorney’s fees under this provision, the party (not the party’s attorney) so ordered is responsible for paying the amount directed by the court. It is within the discretion of the Court to order a party to pay either all or only a portion of the other party’s attorney’s fees.

The second situation in which a court might award one party to pay the other party’s attorney’s fees is not to equalize the status of the parties, but instead to deter unethical litigation. Under C.R.S. § 13-17-102, courts in domestic relations cases can award reasonable attorney’s fees if a particular action taken by a party lacks “substantial justification.” Basically, an action lacks substantial justification if the action is frivolous1, groundless2, or vexatious3. If a court awards attorney’s fees on any of these bases, then the court may allocate the amount ordered between the offending party and the offending party’s attorney. Although the request for attorney’s fees under this particular statute is best presented at the district court level, a party may make the request after the court renders a judgment.

However, an award of attorney’s fees based on the offensive conduct of the other party, under C.R.S. § 13-17-102, are not always appropriate. For instance, if the offending party is representing himself in the action, then a court will not assess him attorney’s fees unless the court actually finds that the offending party knew or reasonably should have known that his conduct was offensive. [Beware…this exception does not apply to attorneys who represent themselves in a domestic relations case] Also, the court will not award attorney’s fees if the party acted in good faith. Furthermore, a court will not necessarily consider a losing argument a frivolous, groundless, or vexatious action. When the offending party is made aware that the action taken was frivolous, groundless, or vexatious, within reasonable time he may withdraw such action to avoid an assessment of attorney’s fees.

In both situations, the trial court has wide discretion in whether to award attorney’s fees and such an award or denial of an award will only be reversed if the trial court abused its discretion.

1 - An action is frivolous if there is no rational argument based on law or evidence to support the action.

2 - Groundless actions are those not supported by any credible evidence at trial.

3 - Actions or conduct in bad faith, to annoy, or to harass the other party can be considered vexatious.